doi:10.1515/nor-2016-0013 Nordicom Review 37 (2016) 2, pp. 1-16 Market-Driven Challenges to Freedom of Expression and the Interaction Between the State, the Market, and the Media1 Eva-Maria Svensson & Maria Edström Abstract The controlling function of the media is essential for freedom of expression in a democratic society. One of the pre-conditions of this controlling function is independence in relation not only to the state but also in relation to commercial interests. It is the latter relationship that is the focus of this article. Recent changes in the media landscape have put pressure on the independence of the media. Commercial interests seem to gain more influence on media content. The distinction between journalism and advertising has become less clear and it is not always maintained despite both legislation and self-regulation that dictate such a division. The aim of this article is to analyse the consequences of the changes in the media land- scape and the challenges posed to the infrastructure for freedom of expression in Sweden, including legislation and self-regulation. The analysis is made with the help of the analytical distinction between market-driven and democracy-driven freedom of expression. Keywords: freedom of expression, democracy-driven freedom of expression, market-driven freedom of expression, independent journalism, controlling function of journalism, Swedish infrastructure for freedom of expression, advertising Introduction Freedom of expression is constantly under pressure, as an individual right and com- mon good. The democratic role of the mass media, for the common good in the public sphere, is connected to the long historical protection of the press in the constitutional framework, and in the infrastructure2 for freedom of expression. State initiatives to restrict freedom of expression are well known and widely dis- cussed, for example when it comes to censorship and state-controlled television. There are also threats from groups and individuals who want to limit the concept of freedom of expression, especially when it comes to religion (e.g. the threats against Salman Rushdie for writing The Satanic Verses, the controversy over cartoons of Mohammed, and the 2015 attack on the satirical magazine Charlie Hebdo). Apart from these challenges, there is one not as widely discussed as the others: the pressures on freedom of expression from the market. Newspapers are under pressure from decreasing revenues due to technological developments and changing media busi- ness models. New forms of collaborations emerge between editorial and commercial 1 Nordicom Review 37 (2016) 2 interests, resulting in advertising dressed as journalism, such as native advertising. Concerns have also been raised on the risks of media industry ownership concentration for freedom of expression, especially when it comes to the problem of one-sided views and agendas (McChesney, 1999; McChesney & Pickard, 2011; Rønning, 2013: 19). At the same time, increased demands to strengthen the legal protection for commercial messages are made. The traditional emphasis on protecting primarily political speech is extended to also encompass commercial speech (Piety, 2012; Heide-Jørgensen, 2013). These market-driven challenges have implications for the infrastructure for freedom of expression. News media has been described as the third or fourth estate3 due to its controlling function. Traditionally the controlling function has primarily been aimed at the state and at political power. However, the abuse of power can also come from other power centres, such as market economy institutions (Rønning, 2013). One of the pre-conditions for the media to perform this function is independence, from the state and from the market (McManus, 2009). In the current situation, it is essential to reflect on how the scrutinising and controlling function of journalism can remain independent in relation to commercial interests and can safeguard freedom of expression in the name of democ- racy. As the legal scholar C. Edwin Baker states: “democracy is impossible without a free press” (Baker, 2002: 125). In most jurisdictions, the controlling function of journalism in the service of the citizens is considered to be part of the general statement of freedom of expression as a restriction on the state’s ability to interfere with individual rights. In some jurisdic- tions, such as in Sweden, the democratic function of the media is established through a specific regulatory model, originally developed for the press but, in modern times, also adapted for other kinds of media. The model, with its constitutional and statutory provisions complementing media self-regulation and state subsidies for media plural- ism, is unique. It has several features often highlighted in the conceptual framing of media governance. According to the legal scholar, Thomas Bull, the emphasis on the free press is a particularly strong and entrenched part of the Swedish constitution and is a bulwark against the misuse of power (Bull, 2014: 18). The Swedish model can be seen as based on a democracy-driven view of freedom of expression and therefore will be used as an example here. The conceptual distinction between market-driven and democracy-driven freedom of expression captures a tension between two ideal types of rationalities. The rational- ity of democracy-driven freedom of expression is committed to safeguarding free and independent information and expressions as a prerequisite for democracy. The rationality of market-driven freedom of expression is committed to safeguarding all information and expressions regardless of their interests and purposes.4 The process in which com- mercial interests have claimed and gained more recognition and protection5, and also have acquired more influence on news media due to changes in media business models, is a global phenomenon.6 The aim of this article is to use these concepts to analyse the consequences of the changes in the media landscape and to discuss the challenges that are posed to the national regulatory systems, including the legislation and the self- regulation that make up the infrastructure for freedom of expression in Sweden. 2 Eva-Maria Svensson & Maria Edström Market-Driven Challenges to Freedom of Expression and the Interaction Between the State, the Market, and the Media Changes in the Media Landscape Challenges to Financing Journalism Advertising has for a long time been a major income source for the press and the com- mercial broadcast media. Changes in the media landscape have contributed to a huge economic shift for the media industry. Content providers are losing advertising revenues to distributors and to platform providers. With the expansion of digital communication, traditional news companies are losing money due to changes in audience and changes in market patterns. The Nordic press has long been accustomed to high subscription-rates for newspapers, but younger generations are less willing to pay for a newspaper and the subscription-rate is declining. The household cost for a newspaper is now a minor cost compared with all other media expenses.7 There are also shifts in revenues from local/ national media companies to intermediaries such as the telecom-industry and global ac- tors such as Google and Facebook. The advertisers have turned their investments away from the daily press. The local mass media has become less attractive for advertisers when global actors are better at individually tailored advertising (Sundin, 2013; Ohls- son, 2015a). The market share for the Swedish daily press has declined from 82 per cent in 1989 to 45 per cent in 2013 (Ohlsson & Truedsson, 2015: 9-10). Google and Facebook alone are estimated to have between a third and a half of digital investments in the Swedish media market (Herlin, 2015: 4). The current situation leads to a lack of financing of the type of journalism that would be expected to fulfil the controlling function of the media. It’s mainly a problem for printed press in Sweden; television commercials are still creating big revenues for na- tional commercial broadcasters, but their programming focus is more on entertainment than on journalism (Asp, 2013: 13-14). The audience seems to be more interested in entertainment than in traditional quality journalism, and the media has focused increas- ingly on providing entertainment (Sundin, 2013: 11-12). The new global actors do not have the same explicit democratic mission and respon- sibility in terms of common good and controlling function. In addition, people in general are experiencing what has been called advertising fatigue.8 With more commercials on television and more ads on the Internet, people seek different ways to avoid commercials, which in turn leads to a tension between advertisers and traditional media. Public service broadcasting has traditionally been more independent of revenues from the market and usually has a wider mission within the democratic society. When public service was the only broadcast provider in the Nordic countries, few questioned this type of television and radio. With the advent of modern technology, more commercial broad- casters have emerged and traditional print media houses now publish on many different platforms, including television. These companies see public service broadcasting as unfair competition, and they have raised demands for limitations to be put on the public service’s special finance model.9 These demands are to a certain degree accommodated by the EU, and public service broadcasters are obliged to report new permanent program services. The Swedish government demands that public service broadcasters submit new services for approval to the Swedish Broadcasting Commission (Media Development, 2011: 93).10 In Norway, conservative politicians even demand paywalls for public service in order to meet the claims from commercial actors (Aftenposten, 2015). In Denmark, the public services have found new ways of financing content and, since 2008, there has been a Public Service Fund mainly aimed at drama production but also aimed at docu- 3 Nordicom Review 37 (2016) 2 mentaries, regional programmes, and children’s programmes (New Public Service Fund For Danish TV 2007).